State Of Washington, V. Preston Kent Cable

• Court: Court of Appeals of Washington
• Decided: April 17, 2023
• Docket: 84176-9
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

STATE OF WASHINGTON, No. 84176-9-I

Respondent,

v. UNPUBLISHED OPINION CABLE, PRESTON KENT, DOB: 06/22/1986,

Appellant.

BOWMAN, J. — Preston Kent Cable appeals the amended restitution order

entered following his plea of guilty to nine offenses. Cable argues that we must

vacate the restitution order because substantial evidence does not support the

amount imposed and lacked an adequate causal connection to the charged

crimes. Finding no error, we affirm.

FACTS

The State charged Cable with nine crimes committed between 2019 and

2022 in Snohomish County. The crimes included count 6, second degree

burglary of the community room at the Farm by Vintage apartment complex on

December 28, 2021; count 7, second degree burglary of Marshbank Construction

on January 2, 2022; count 8, possession of Marshbank Construction’s stolen

Ford F-450 flatbed truck on January 2, 2022; and count 9, possession of Malik

Noori’s stolen Toyota Highlander SUV1 on March 10, 2022.

1 Sport utility vehicle.

This opinion bases the citations and pin cites on the Westlaw online version of the cited material. No. 84176-9-I/2

Cable pleaded guilty to all nine counts on March 22, 2022. In his plea

agreement, Cable stipulated that “[f]acts to be considered for imposing sentence

are as set forth in the affidavit(s) of probable cause.” Cable also agreed the

State could seek and he would pay restitution “in full” for “[c]harged” and

“[u]ncharged” crimes. The same day, the court imposed a standard-range

sentence and entered an agreed restitution order for $6,217.59 for counts 1 and

2 only.

On May 31, 2022, the sentencing court held a hearing on the State’s

request to amend the restitution order to add losses for counts 6, 7, 8, and 9 and

uncharged crimes. The State submitted insurance policy documents, receipts,

and victim loss statements from the Farm by Vintage and Noori. Cable agreed to

reimburse the Farm by Vintage for count 6, but he contested paying restitution for

the losses to Marshbank Construction and Noori.

As to counts 7 and 8, the Snohomish County Sherriff’s Office report on

probable cause to arrest (affidavit) states that on January 2, 2022, Cable and an

accomplice entered the Marshbank Construction property, loaded “items” onto

the company’s Ford F-450 flatbed truck, and drove away in the truck “at a high

rate of speed.” After a “long follow,” police stopped the stolen truck and arrested

the driver, Cable. Police found Marshbank Construction’s paint stripper on the

flatbed. They then had the F-450 towed back to Marshbank Construction at the

owner’s request.

As to count 9, the affidavits state that on March 10, 2022, police observed

Cable driving a Toyota Highlander that Noori had reported as stolen from his

apartment complex on February 24, 2022. When police stopped the Highlander,

2 No. 84176-9-I/3

Cable fled, but officers eventually caught and arrested him. After an officer read

him his Miranda2 rights, Cable admitted that he had “lifted” the vehicle “ ‘a few

weeks’ ” earlier from the same apartment complex where Noori lived and last

saw his SUV.

Sentry Insurance sought $14,411.98 for the amount it paid to repair

Marshbank Construction’s Ford F-450. Noori’s insurer, Allstate Insurance

Company, asked for $4,932.31 for the amount it paid to Noori for damages to the

Toyota Highlander and property missing from the SUV, including clothing,

jewelry, and luggage. Noori asked for $5,000 for lost property not covered by

Allstate.

In opposition, Cable argued that the alleged damage to the Ford F-450’s

transmission, suspension, wheels, and tires occurred before he stole it. As to the

Toyota Highlander, Cable conceded that Noori may be owed something for

damages, but because the amount of restitution was not “easily ascertainable”

based on the evidence Noori provided, the court had no “basis to impose any

amount.”

On June 1, 2022, the sentencing court entered written findings of fact and

conclusions of law amending the restitution order to $32,407.17. The court

awarded Sentry Insurance $14,411.98 for costs to repair the Ford F-450. It

concluded Cable “presented no evidence to support [his] objection to the

documented claim of the victim,” and “it is reasonable that the damage resulted

from [Cable’s actions] in driving the vehicle to escape from police.” As to

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

3 No. 84176-9-I/4

damages and property loss associated with the Toyota Highlander, the court

awarded Noori $4,009.51, concluding that “[t]he amount of his loss is clearly

ascertainable from the documentation provided by Allstate, supported by Mr.

Noori’s letter to the Court.” The court also awarded Allstate $4,932.31 for the

claims it paid to Noori.

Cable appeals.

ANALYSIS

Cable argues that we must vacate the restitution order because

substantial evidence does not support the amount imposed for damage to the

Ford F-450 and the property missing from the Toyota Highlander, and the

restitution ordered lacked a causal connection to the charged crimes.3

A sentencing court’s authority to order restitution is purely statutory. State

v. Griffith, 164 Wn.2d 960, 965, 195 P.3d 506 (2008). We will not disturb a trial

court’s restitution order absent an abuse of discretion. State v. Enstone, 137

Wn.2d 675, 679, 974 P.2d 828 (1999). A trial court abuses its discretion when it

exercises it on untenable grounds or for untenable reasons. State v. Lormor, 172

Wn.2d 85, 94, 257 P.3d 624 (2011).

The legislature grants broad powers of restitution to the sentencing court.

State v. Tobin, 161 Wn.2d 517, 524, 166 P.3d 1167 (2007). Restitution is

required “whenever the offender is convicted of an offense which results in injury

3 Cable also asserts ineffective assistance of counsel as much as defense counsel’s failure to object on the same grounds below was not specific enough to preserve the issue for appeal. The State did not respond to the argument. Because we address the merits of Cable’s challenge to the restitution order, we need not address his ineffective assistance of counsel claim.

4 No. 84176-9-I/5

to any person or damage to or loss of property.” RCW 9.94A.753(5). Restitution

is both punitive and compensatory. State v. Kinneman, 155 Wn.2d 272, 280, 119

P.3d 350 (2005). “[T]he plain language of the restitution statute allows the trial

judge to order restitution ranging from zero in extraordinary circumstances, up to

double the offender’s gain or the victim’s loss.” Tobin, 161 Wn.2d at 524; see

RCW 9.94A.753(3).

“Absent agreement from the defendant as to the amount of restitution, the

State must prove the amount by a preponderance of the evidence.” Tobin, 161

Wn.2d at 524. The sentencing court must base the amount of restitution “on

easily ascertainable damages for . . . loss of property.” RCW 9.94A.753(3). But

the State need not establish the restitution amount with specific accuracy.

Griffith, 164 Wn.2d at 965. And although the rules of evidence do not apply at

restitution hearings, the evidence admitted must be reliable. State v. Pollard, 66

Wn. App. 779, 784-85, 834 P.2d 51 (1992). “ ‘Evidence supporting restitution is

sufficient if it affords a reasonable basis for estimating loss and does not subject

the trier of fact to mere speculation or conjecture.’ ” Griffith, 164 Wn.2d at 9654

(quoting State v. Hughes, 154 Wn.2d 118, 154, 110 P.3d 192 (2005), abrogated

on other grounds by Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546,

165 L. Ed. 2d 466 (2006)).

Ford F-450

Cable argues that the State failed to meet its burden to prove a causal

connection between his crimes and the claimed damages to the Ford F-450,

4 Internal quotation marks omitted.

5 No. 84176-9-I/6

including repairs to the truck’s wheels, tires, front suspension, and transmission.

According to Cable, no evidence links these damages to his brief possession of

the truck, so the sentencing court abused its discretion when it found a causal

connection based on “mere speculation and conjecture.” We disagree.

Restitution is allowed only for losses that are causally connected to the

crimes charged. Kinneman, 155 Wn.2d at 286. “Losses are causally connected

if, but for the charged crime, the victim would not have incurred the loss.” Griffith,

164 Wn.2d at 966. The evidence is sufficient if it affords a reasonable basis for

estimating loss based on a causal connection between the crime and the victim’s

damages. State v. Dedonado, 99 Wn. App. 251, 256, 991 P.2d 1216 (2000).

Whether a loss is causally connected to the crime for which the defendant was

convicted is a question of law we review de novo. State v. Acevedo, 159 Wn.

App. 221, 229-30, 248 P.3d 526 (2010).

Here, the evidence showed that Cable “sped away” from the Marshbank

Construction property in the company’s Ford F-450, that police pursued him at “a

high rate of speed,” and that they “eventually stopped [him] after a long follow.”

The truck was then “towed back to the incident location.” Based on this

evidence, it is reasonable to infer that the truck was drivable at the time Cable

stole it but no longer drivable after the pursuit. And Sentry Insurance provided

photographs and receipts documenting the damage to the truck and the cost to

repair it. Accordingly, we conclude that the State met its burden to prove by a

preponderance of the evidence that but for the theft of the Ford F-450, the

claimed damages would not have occurred.

6 No. 84176-9-I/7

Relying on Dedonado, Cable argues that the documentation the State

provided “did not establish a causal connection between Cable’s actions and the

damage to the truck.” In Dedonado, the defendant damaged a van’s ignition

switch while stealing the van. 99 Wn. App. at 253. At the restitution hearing, the

State provided a preliminary estimate from a mechanic that included costs to “ ‘fill

all fluids’ ” and “ ‘align front suspension’ ” in addition to repairing the ignition

switch. Id. at 255.5 We held that the State’s documentation “did not establish a

causal connection between Dedonado’s actions and the damages” because it

was impossible to determine whether “all of the repairs to the van were related to

the damaged ignition switch.” Id. at 257.

Unlike Dedonado, the State presented sufficient evidence to support a

causal connection between Cable’s criminal conduct and the damage to the Ford

F-450.

Cable further relies on Dedonado to argue that the court improperly

faulted him for “present[ing] no evidence to support [his] objection to the

documented claim of the victim” when it is the State’s obligation to establish the

amount of restitution. In Dedonado, we held the restitution statute does not

require the defendant to notify the State that he is challenging restitution

evidence before the court holds a hearing, and the sentencing court “improperly

imposed that requirement” on the defendant, shifting the burden of proof. 99 Wn.

App at 257. Here, although the sentencing court noted that Cable offered no

evidence in support of his argument, it did not require him to do so, and it did not

5 Capitalization omitted.

7 No. 84176-9-I/8

relieve the State of its burden to prove the amount of restitution by a

preponderance of the evidence.

Toyota Highlander

Cable argues that the sentencing court erred by awarding restitution for

the items missing from Noori’s Toyota Highlander because the value of the

missing items was not easily ascertainable. Cable points out that Noori claimed

$5,000 for missing jewelry in his victim loss statement but previously claimed in

an e-mail to the prosecutor that it was valued at $4,000. He also points out that

both amounts differed slightly from the loss estimated by Allstate Insurance.

As discussed, while the court must base restitution on “easily

ascertainable” damages, the amount of loss need not be shown with specific

accuracy. Kinneman, 155 Wn.2d at 285. “ ‘Once the fact of damage is

established, the precise amount need not be shown with mathematical

certainty.’ ” State v. Bush, 34 Wn. App. 121, 124, 659 P.2d 1127 (1983) (quoting

Haner v. Quincy Farms Chems., Inc., 29 Wn. App. 93, 97-98, 627 P.2d 571

(1981), aff’d in part and rev’d in part on other grounds by 97 Wn.2d 753, 649

P.2d 828 (1982)).

Cable does not dispute that Noori lost property or the court’s

determination that the loss flowed causally from Cable’s actions. Indeed, the

evidence before the sentencing court included police affidavits, Noori’s victim

loss statement, a previous e-mail from Noori documenting items missing from the

SUV, and documentation from Allstate Insurance. This documentation provided

sufficient evidence for the court to ascertain the losses and the amount of

restitution owed to Noori and Allstate. And although Cable asserts that Noori’s

8 No. 84176-9-I/9

victim loss statement does not qualify as competent evidence,6 credibility

determinations are for the trier of fact and are not subject to review. State v.

Mines, 163 Wn.2d 387, 391, 179 P.3d 835 (2008). There was no abuse of

discretion.

Cable also argues that we must vacate the restitution order because he

did not expressly or otherwise agree to pay restitution for uncharged crimes

associated with Noori. We disagree.

“A plea agreement is like a contract and is analyzed according to contract

principles.” State v. Sanchez, 146 Wn.2d 339, 347, 46 P.3d 774 (2002). The

sentencing court may not impose additional restitution for uncharged crimes

unless the defendant expressly agrees to do so as part of the plea bargain

process. State v. Woods, 90 Wn. App. 904, 908, 953 P.2d 834 (1998).

Here, Cable pleaded guilty to possessing Noori’s Toyota Highlander on

March 10, 2022. As Cable accurately notes, the State did not prove that his

possession of the car on that date caused the items to go missing. But Cable

unambiguously stipulated as part of his plea agreement that “the State may seek

restitution in full” for “[c]harged” and “[u]ncharged” crimes, including crimes

involving Noori as described in the police affidavits, and that he “agrees to pay

restitution in full” for “[c]harged” and “[u]ncharged” crimes as described in the

police affidavits. Those affidavits establish that Noori reported the Toyota

Highlander as stolen on February 24, 2022, that Cable admitted stealing it from

6 Cable insists Noori’s “unsworn” victim loss statement was not competent evidence. Noori did not swear to the damages listed in his e-mail, but he did sign the victim loss statement under the penalty of perjury.

9 No. 84176-9-I/10

the same apartment complex where Noori lives, and that he admitted to

possessing the vehicle “ ‘for a few weeks.’ ”

Cable obligated himself to pay for uncharged crimes based on the police

affidavits. Because the affidavits establish he stole the SUV and, in turn, its

contents, the sentencing court did not abuse its discretion in finding that he was

responsible for losses that flowed causally from the uncharged theft.7

Because a preponderance of the evidence supports the amount of

restitution and there is a causal connection between the losses and the charged

crimes, the sentencing court’s restitution order was not an abuse of discretion.

We affirm.

WE CONCUR:

7 Cable’s reliance on cases holding that “restitution can only be based on damages caused during the dates for which the State charges the defendant with a crime” is misplaced. In those cases, unlike here, the defendants did not agree that the State could seek restitution for uncharged crimes. See Woods, 90 Wn. App. at 908-09; Acevedo, 159 Wn. App. at 229-31; State v. Tetters, 81 Wn. App. 478, 480-81, 914 P.2d 784 (1996).